Analysis of Judgment No. 21905 of 2024: Notification of Assessment Notice and Representation in S.A.S.
Judgment No. 21905 of August 2, 2024, issued by the Court of Cassation, provides important clarification on the notification of tax assessment notices, particularly concerning limited partnerships (S.A.S.). This ruling focuses on the validity of notifying tax acts to the heirs of a former liquidator partner, highlighting the rights and duties of liquidators and heirs within the context of partnerships.
The Case and the Court's Decision
In the case at hand, the Court ruled that the notification of the assessment notice served on the heirs of the former general partner and liquidator of an S.A.S. that had been removed from the companies' register is null and void. This is because the five-year deferral of the effects of dissolution, as provided for by Article 28, paragraph 4, of Legislative Decree No. 175 of 2014, implies that the liquidator retains all powers of representation of the company.
- The liquidator is authorized to receive notifications of tax acts.
- The death of a partner does not automatically transfer representation rights to the heirs.
- Notifications must be addressed to the company or the liquidator, not to the heirs.
Relevant Legal Provisions and Case Law
The Court's decision is based on several legal provisions, including the Civil Code, particularly Articles 2495 and 2315, which deal with the dissolution of companies and the powers of liquidators. Furthermore, Article 145 of the Code of Civil Procedure establishes the methods for serving notices, emphasizing the need to comply with the procedures established in current legislation.
In general. The notification of the assessment notice served on the heirs of the former general partner and liquidator of an S.A.S., removed from the companies' register, is null and void, as the five-year deferral of the effects of dissolution, provided for by Article 28, paragraph 4, of Legislative Decree No. 175 of 2014, means that the liquidator retains all powers of representation of the company on a substantive and procedural level. Consequently, the liquidator is authorized to receive notifications of tax acts. Therefore, the death of the former general partner and liquidator of an S.A.S. does not imply any automatic transfer of representation of the corporate entity to the heirs, nor any procedural capacity for them to receive, in their stead, acts addressed to a partnership still in existence following said deferral. Thus, the partnership remains the recipient of the tax act notification, which must be served at its tax domicile pursuant to Article 60, paragraph 1, letter c), of Presidential Decree No. 600 of 1973, or, alternatively, directly to the individual representing it, pursuant to Article 145 of the Code of Civil Procedure.
Conclusions
In conclusion, judgment No. 21905 of 2024 provides fundamental clarification regarding the notification of tax acts to limited partnerships. It underscores the importance of following correct notification procedures and understanding the roles of liquidators and heirs within the context of partnerships. This decision not only addresses a need for legal clarity but also offers food for thought for professionals and taxpayers regarding the management of tax liabilities of dissolved companies.
